Opinion
No. 38942.
March 5, 1945. Rehearing Denied, Motion to Transfer to Banc or to Modify Opinion Overruled, April 2, 1945.
1. EVIDENCE: Insurance: Cause of Paralysis: Opinion of Medical Expert Sufficient: Not Destroyed on Cross-Examination. The testimony of plaintiff's medical expert that the paralysis of the insured was caused by a bump on the head was substantial evidence for the jury and was not destroyed on cross-examination by the possibility of the paralysis having been caused by a disease not disclosed by plaintiff's evidence.
2. INSURANCE: Accident Insurance: No Burden on Plaintiff to Exclude Disease. In an action on an accident insurance policy there is no burden on the plaintiff to show that the disability was not caused by disease.
3. INSURANCE: Accident Insurance: Submissible Case. It was a jury question whether the paralysis of the insured was caused by accident or disease.
4. INSURANCE: Appeal and Error: Issue of Instructed Verdict Not Properly Raised. The issue of whether plaintiff was entitled to an instructed verdict on the policy was not raised in the motion for new trial and is not before the court on appeal.
5. EVIDENCE: Insurance: Vexatious Refusal to Pay: Unauthorized Letter to Agent Inadmissible. An unauthorized letter of a Christian Scientist practitioner to the agent of the insurance company dealing with the physical condition of the insured was inadmissible hearsay and was not made admissible by the issue of vexatious refusal to pay.
6. EVIDENCE: Insurance: Vexatious Refusal to Pay: Self-Serving Statements Inadmissible. Self-serving statements in the nature of interoffice communications of the insurance company, including a medical report made by the insurance company's physician and letters from the agent to the home office, were inadmissible on the issue of vexatious refusal to pay and were prejudicial.
Appeal from Circuit Court of City of St. Louis. — Hon. Ernest F. Oakley, Judge.
REVERSED AND REMANDED.
Jonathan Edwards Clarke for appellant.
(1) After examining insured in 1934 the defendant company's denial of liability thereafter upon the sole ground that the loss did not occur from a risk insured against is, as a matter of law, a waiver of notice and proof, the furnishing of which would be a needless and idle ceremony. Graves v. Washington Natl. Ins. Co., 180 S.W.2d 805; Dezell v. Fidelity Casualty Co., 176 Mo. 253; Crenshaw v. Ins. Co., 71 Mo. App. 42; Hardie v. Metropolitan Life Ins. Co., 7 S.W.2d 746; Brix v. Fidelity Co., 171 Mo. App. 518; 1 C.J., p. 479; 7 Couch on Ins., p. 5540, sec. 1573; Sturgis v. American Hospital Life Ins. Co., 174 S.W.2d 917; Shearlock v. Mutual Life Ins. Co., 182 S.W. 89; See also authorities under Point (10). (2) Even if the physical examination and denial of liability in 1934 upon the ground of no accident could be held not to amount to a waiver of notice, time is not of the essence of such provision, and the insurance cannot be forfeited for failure to give notice prior to 1940 in the absence of an express provision of the policy declaring such a forfeiture. Dezell v. Fidelity Casualty Co., 176 Mo. 253, 75 S.W. 1102; Shanebarg v. Natl. Accident Society, 263 S.W. 512; State ex rel. v. Allen, 267 S.W. 379; Pendergast v. Dwelling House Ins. Co., 67 Mo. App. 426; Jones v. Casualty Co., 113 Mo. App. 622; Hablutzel v. Home Life Ins. Co., 59 S.W.2d 639; Jackson v. Security Ben. Assn., 139 S.W.2d 1014; Lydon v. New York Life Ins. Co., 89 F.2d 78; Bank of Commerce Trust Co. v. Northwestern Natl. Life Ins. Co., 26 S.W.2d 1935; Drucker v. Western Indemnity Co., 223 S.W. 989; Minnesota Mutual Life Ins. Co. v. Marshall, 29 F.2d 977; Rogers v. Metropolitan Life Ins. Co., 122 S.W.2d l.c. 11; Wood v. Metropolitan Life Ins. Co., 161 S.W.2d 737. (3) It follows, therefore, that with notice and proof waived by a denial of liability in 1934, and with no forfeiture provision for failure to give notice, notwithstanding admitted notice in 1940, nothing short of the ten-year statute of limitations will bar plaintiff's right to recover. St. Paul K.C. Ry. Co. v. U.S.F. G. Co., 105 S.W.2d 14; Rogers v. Metropolitan Life Ins. Co., 122 S.W.2d l.c. 5; Corcoran v. Metropolitan Life Ins. Co., 93 S.W.2d 1027; Stalion v. Metropolitan Life Ins. Co., 119 S.W.2d 30; Hablutzel v. Home Life Ins. Co., 52 S.W.2d 480, 59 S.W.2d 639; Jackson v. Security Ben. Assn., 139 S.W.2d 1014; Shearlock v. Mutual Life Ins. Co., 182 S.W. 89. (4) It therefore follows that notice and proof could not be an issue to submit to the jury: that having once waived the notice and proof provisions of the policy in 1934, and having written a policy with no forfeiture provision, the defendant's attempt, through its vice-president and general counsel, in 1940 to create a nonexistent forfeiture for failure to give notice and proof was a nullity and did not constitute a defense to his action. And this denial of liability in 1940 upon the ground that notice and proof were not given and without reserving any other ground of defense constituted a waiver of all defenses not then asserted. Therefore there was no issue to submit to the jury and the trial court erred in rendering judgment for the defendant. 1 C.J., p. 488, sec. 233; Moore v. Natl. Acc. Soc., 49 Wn. 312, 95 P. 268; Reynolds v. Travelers Ins. Co., 176 Wn. l.c. 50; Metropolitan Life Ins. Co. v. Chambers, 226 Ala. 192; Towle v. Ins. Co., 91 Mich. l.c. 223; National Aid Life Assn. v. Murphy, 78 S.W.2d l.c. 227; Ash Grove L. P. Co. v. Southern Surety Co., 38 S.W.2d 434; Talbert v. General Exchange Ins. Corp., 75 S.W.2d 424; Carroll v. Union Marine Ins. Co., 249 S.W. 691; Keyes v. Natl. Council Knights Ladies of Security, 174 Mo. App. 671; Francis Hunter v. Supreme Lodge A.O.U.W., 150 Mo. App. 347; Daniel v. Aetna Life Ins. Co., 36 S.W.2d 688, 225 Mo. App. 357; Shearlock v. Mutual Life Ins. Co., 193 Mo. App. 430, 182 S.W. 89; Hay v. Bankers' Life Co., 231 S.W. 1035; Ceresia v. St. Guiseppe Mut. Aid Working Men's Assn., 211 S.W. 81; Block v. U.S.F. G. Co., 290 S.W. 429. (5) The trial court erred in admitting in evidence defendant's Exhibit A, a letter from a Mrs. Brod, because said letter was hearsay and a conclusion of the writer thereof and was incompetent and self-serving, and a proper foundation had not been laid for its introduction, because said letter was unauthorized by the plaintiff or the insured, and that said Mrs. Brod was not qualified to make a diagnosis of the disability of the insured. The universal rule is that in the absence of a statute, declarations which are objectionable as hearsay are not rendered competent by the fact that the declarant has died since such declarations were made. 22 C.J., p. 216, sec. 179; 31 C.J.S., p. 948, sec. 216; Wahl v. Cunningham, 56 S.W.2d 1052; Townsend v. Schaden, 275 Mo. 227, 204 S.W. 1076; Decker's Estate, 152 S.W.2d 104; McCune v. Daniels, 251 S.W. 458; Alter v. John McMenamy Inv. R.E. Co., 50 S.W.2d 691; Lanphere v. Affeld, 99 S.W.2d 36; Wilson v. Frankel, 61 S.W.2d 363; Gore v. Whitmore Hotel Co., 83 S.W.2d 114; Schultz v. St. Louis-S.F. Ry. Co., 4 S.W.2d 762; 20 Am. Jur., sec. 620; 96 A.L.R. 702 (e); 32 C.J. 54; Sconce v. Jones, 121 S.W.2d 777, 343 Mo. 362; 32 C.J.S., p. 21, sec. 403; Grant v. Grant, 171 Mo. App. 317; Spruce Co. v. Mayes, 62 S.W.2d 824; Haselden v. Standard Mut. Life Assn., 1 S.E.2d 924; Metropolitan Life Ins. Co. v. Bradbury, 65 P.2d 433; New York Life Ins. Co. v. Ittner, 200 S.E. 522; Stone v. Union Fire Ins. Co., 107 P. 241. (6) The court erred in admitting in evidence an inter-company communication, defendant's Exhibit E, a letter from its General Agent, addressed to the Home Office of the defendant, and purporting to carry a statement from Mrs. Mitchell wherein Mrs. Mitchell is alleged to have stated that she didn't know the cause of Mr. Mitchell's condition, because said letter was in the nature of hearsay testimony, was not supported by oath, was not written in the presence of Mr. Mitchell, there was no showing that she was competent to diagnose his condition or was authorized to make a statement in behalf of Mr. Mitchell, and which letter was self-serving and incompetent and not in support of the pleadings in the case. See authorities cited in Point (5); Bacon Piano Co. v. Medcalf Jewelry Music Co., 40 S.W.2d 762; Brown v. Mo. State Life Ins. Co., 254 S.W. 7; Murphy v. Mutual Life Ins. Co., 112 P.2d 993; Bellamy v. Eagle Picher Lead Co., 31 F.2d 662; McCormick v. Travelers Ins. Co., 264 S.W. 916; Wahl v. Cunningham, 56 S.W.2d 1952; Townsend v. Schaden, 275 Mo. 227, 204 S.W. 1076; Eagsdale v. Achuff, 27 S.W.2d 6; Weller v. Collier, 199 S.W. 974; 22 C.J., pp. 228, 230. (7) The court erred in admitting in evidence on behalf of the defendant, defendant's Exhibits F and G, both of which were self-serving, incompetent and immaterial and in the nature of hearsay evidence and not supported by the pleadings. See authorities under Point (5) and Point (6). (8) The court erred in admitting in evidence defendant's Exhibit D, a medical report made by the defendant's physician which was self-serving and in the nature of hearsay testimony and not binding upon the insured and which was incompetent, and because the physician making said report was present as a witness and testified in the case, and for the further reason that said report, under the law, could only be used to refreshen the memory of said physician if he found it necessary to do so. Wahl v. Cunningham, 56 S.W.2d 1053; Tate v. Wabash Ry., 159 Mo. App. 475; Bottom v. Portland Electric Power Co., 9 P.2d 129. (9) The court erred in reading and giving to the jury six instructions on behalf of the defendant, which were instructions 6, 7, 8, 9, 11 and 12, informing the jury that the burden of proof was upon the plaintiff, because the giving of said instructions unduly emphasized the burden placed upon the plaintiff and required the plaintiff to carry a greater burden than is required by law and because the changing of a few words in each of said instructions was a subterfuge on the part of the defendant to avoid the rule of law that a plain, simple burden of proof is sufficient and because said instructions were not covered by the pleadings and were not supported by the evidence. Guardian Life Ins. Co. v. Robinson, 129 S.W.2d 192; Williams v. Guyot, 126 S.W.2d 1137; Belle v. S.S. Kresge Co., 129 S.W.2d 932; Mitchell v. Dyer, 57 S.W.2d 1082; Rouchene v. Gamble Const. Co., 89 S.W.2d l.c. 63; Reeves v. Lutz, 177 S.W. 764; Sidway v. Mo. Land Live Stock Co., 163 Mo. 342. (10) The court erred in reading and giving to the jury on behalf of the defendant Instruction 6, because said instruction is in conflict with instructions given on behalf of the plaintiff and because said instruction told the jury that it was the duty of the plaintiff to give written notice of the accident within 20 days from the occurrence thereof which was a defense not covered by the pleadings and which was not a defense under the policy of insurance, even though the policy may have been interpreted to require the said 20-day notice, said defense was waived by the defendant and because said instruction was misleading and placed upon the plaintiff a greater burden than is required by the law or the policy. See authorities cited under Points (1), (2) and (3); Jackson v. Life Annuity Assn., 195 S.W. 535; Keeton v. Natl. Union, 182 S.W. 298; Propst v. Capital Mutual, 124 S.W.2d 515; 33 C.J., p. 32, sec. 694; 1 C.J. 480, secs 203, 206; 7 Couch on Insurance, sec. 1573; Bennett v. Natl. Union Fire Ins. Co., 80 S.W.2d 914. (11) The court erred in reading and giving to the jury defendant's Instruction 7, which was in the nature of a burden of proof instruction and was erroneous and prejudicial because it required the plaintiff to prove all of the elements in his case, which included facts mentioned in the policy which were waived by the defendant or which plaintiff was not required to prove and because said instruction placed a greater burden upon the plaintiff than was required by law and was misleading. Bennett v. Natl. Union Fire Ins. Co., 80 S.W.2d 914; Kenney v. Hoerr, 23 S.W.2d 96; Robert v. N.Y. Cent. R. Co., 122 S.W.2d 1, 20 Am. Jur., sec. 1444; Turner v. Natl. Benev. Soc., 28 S.W.2d 125; Fetter v. Fidelity Casualty Co., 174 Mo. 256, 61 A.L.R. 459; Guardian Life Ins. Co. v. Robison, 129 S.W.2d 192; Rouchene v. Gamble Construction Co., 89 S.W.2d 58. (12) Vexatious delay: Wollums v. Mutual Ben. Health Acc. Assn., 46 S.W.2d 259; Evans v. Great Northern Life Ins. Co., 167 S.W.2d 118; Third Natl. Bank v. Yorkshire Ins. Co., 267 S.W. 445; Goffe v. Natl. Surety Co., 9 S.W.2d 929; Exchange Bank v. Turner, 14 S.W.2d 425. (13) Obstructive tactics after suit filed: Blackwell v. Ins. Co., 80 Mo. App. 75; Grand Lodge v. Mass. B. Ins. Co., 25 S.W.2d 783; Patterson v. Ins. Co., 174 Mo. App. 37; Fay v. Aetna Life Ins. Co., 187 S.W. 861; Coscarella v. Ins. Co., 175 Mo. App. 130. (14) Cancellation of policy; Distler v. Columbian Natl. Life Ins. Co., 227 S.W. 133; Block v. U.S.F. G. Co., 290 S.W. 429; Lemay Ferry Bank v. New Amsterdam Cas. Co., 347 Mo. 793, 149 S.W.2d 331; Evans v. Great Northern Life Ins. Co., 167 S.W. 118.
Orville Richardson, James C. Jones, Jr., and Jones, Hocker, Gladney Grand for respondent.
(1) The plaintiff had a duty under the common law of introducing substantial evidence, but failed to do so and thus failed to remove the case from the realm of speculation. "Substantial evidence" is evidence which will be sufficient to establish with reasonable certainty in the minds of persons of ordinary and average intelligence the existence of the facts on which the finding is necessarily based. State v. Gregory, 339 Mo. 133, 96 S.W.2d 47; Berkemeier v. Reller, 316 Mo. 614, 296 S.W. 739; James v. K.C. Gas Co., 325 Mo. 1054, 30 S.W.2d 118. (2) The determination of whether evidence is substantial is a question of law. Morgan v. Kroger Grocery Baking Co., 348 Mo. 542, 154 S.W.2d 44. (3) This determination does not invade the jury's province, but does require some weighing of the evidence and some judgment of its believability. Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; State v. Gregory, 339 Mo. 133, 96 S.W.2d 47; King v. K.C. Life Ins. Co., 350 Mo. 75, 164 S.W.2d 458. (4) Dr. Pernoud's opinion that the accident caused the paralysis was a mere guess based solely upon the fallacy of post hoc ergo propter hoc. Hunt v. Armour Co., 345 Mo. 677, 136 S.W.2d 312; Kimmie v. Terminal Railroad Assn. of St. Louis, 334 Mo. 596, 66 S.W.2d 561; Cox v. M.-K.-T.R. Co., 335 Mo. 1226, 76 S.W.2d 411; Hall v. Mercantile Trust Co., 332 Mo. 802, 59 S.W.2d 664; Ocean Accident Guarantee Corp. v. Moore, 85 F.2d 369; Svenson v. Mutual Life Ins. Co., 87 F.2d 441; Bussman Mfg. Co. v. Natl. Labor Relations Board, 111 F.2d 783. (5) The opinion was a mere arbitrary choice between two equally possible causes without knowledge of facts by which disease could be excluded as the real cause. Phillips v. Travelers Ins. Co., 288 Mo. 175, 231 S.W. 947; Massachusetts Protective Assn. v. Mouber, 110 F.2d 203; Jones v. Mutual Life Ins. Co., 113 F.2d 873. (6) The plaintiff had a duty under the policy of proving that the paralysis resulted independently of disease which was expressly not covered by the insuring clause of the policy. Freeman v. Loyal Protective Ins. Co., 196 Mo. App. 383, 195 S.W. 545; Atherton v. Ry. Mail Assn., 221 S.W. 752; Grandgenett v. Natl. Prot. Ins. Assn., 229 Mo. App. 132, 73 S.W.2d 341; Sampson v. Postal Life Cas. Ins. Co., 78 S.W.2d 466; Christanson v. Met. Life Ins. Co., 102 S.W.2d 682; Beem v. General Acc. Fire Life Assur. Corp., 231 Mo. App. 685, 105 S.W.2d 956; Berne v. Prudential Ins. Co., 235 Mo. App. 178, 129 S.W.2d 92; Wright v. Order of U.C.T., 188 Mo. App. 457, 174 S.W. 833; Phillips v. Travelers Ins. Co., 288 Mo. 175, 231 S.W. 947; Costello v. Sovereign Camp, 236 Mo. App. 1103, 162 S.W.2d 322; Wheeler v. Fid. Cas. Co. of N.Y., 298 Mo. 619, 251 S.W. 924; Beckerleg v. Locomotive Engrs. Mut. Life Acc. Ins. Assn., 274 S.W. 917; New York Life Ins. Co. v. Greber, 55 Ariz. 261, 100 P.2d 987; Kellner v. Travelers Ins. Co., 180 Cal. 326, 181 P. 61; Metropolitan Life Ins. Co. v. Jenkins, 12 So.2d 374; Overstreet v. Metropolitan Life Ins. Co., 69 Ga. App. 459, 26 S.E.2d 115; Police Firemen's Assn. v. Blunk, 107 Ind. App. 279, 20 N.E.2d 660; Michener v. Fidelity Casualty Co., 200 Iowa 476, 203 N.W. 14; United Benefit Life Ins. Co. v. Schott, 296 Ky. 789, 177 S.W.2d 581; Ardoin v. Fireside Mutual Aid Assn., 151 So. 248, affirmed in 180 La. 309, 156 So. 363; Frerichs v. L. L. Indemnity Co., 169 La. 182, 124 So. 821; Gorski v. New York Life Ins. Co., 51 N.E.2d 761; Ryan v. Metropolitan Life Ins. Co., 206 Minn. 562, 289 N.W. 557; Equitable Life Assur. Soc. v. Askew, 11 So.2d 441; McMartin v. Fidelity Casualty Co., 264 N.Y. 220, 190 N.E. 414; Berkowitz v. New York Life Ins. Co., 256 A.D. 324, 10 N.Y.S.2d 107; Armstrong v. Travelers Insurance, 4 Ohio App. 46; Federal Life Ins. Co. v. Firestone, 159 Okla. 228, 15 P.2d 141; Lucas v. Metropolitan Life Ins. Co., 339 Pa. 277, 14 A.2d 85; Real Estate Trust Co. v. Metropolitan Life Ins. Co., 340 Pa. 533, 17 A.2d 416; Silva v. Peerless Casualty Co., 53 R.I. 218, 165 A. 449; Maryland Casualty Co. v. Glass, 29 Tex. Civ. App. 159, 67 S.W. 1062; International Travelers Ins. Co. v. Marshall, 114 S.W.2d 851; Lee v. New York Life Ins. Co., 95 Utah, 445, 82 P.2d 178; New England Mutual Life Ins. Co. v. Flemming, 102 F.2d 143; Mandles v. Guardian Life Ins. Co., 115 F.2d 994; Ryan v. Continental Casualty Co., 47 F.2d 472; New York Life Ins. Co. v. Hatcher, 115 F.2d 52; Illinois Commercial Men's Assn. v. Parks, 179 F. 794; Troutman v. Mutual Life, 125 F.2d 769; New York Life Ins. Co. v. Roufos, 83 F.2d 620; Brown v. Maryland Casualty Co., 55 F.2d 159; Order of Commercial Travelers v. Nicholson, 9 F.2d 7; Harrison v. New York Life Ins. Co., 78 F.2d 421; Mutual Life Ins. Co. v. Hassing, 134 F.2d 714; Travelers Ins. Co. v. Selden, 78 F. 285. (7) Assignment 1 and Points 1, 2, 3 and 4 are too indefinite to preserve anything for review, and were likewise insufficient in the motion for new trial. The judgment and verdict were not "contrary to the law and pleadings" and the court did not err in rendering judgment for defendant. The motion for new trial and the assignment of error are insufficient for indefiniteness. Bond v. Williams, 279 Mo. 215, 214 S.W. 202; Greer v. Carpenter, 323 Mo. 878, 19 S.W.2d 1046; Marsters v. Bray, 85 S.W.2d 479; Matthews v. Karnes, 320 Mo. 962, 9 S.W.2d 628; Clay v. Owen, 338 Mo. 1061, 93 S.W.2d 914; State ex rel. Ward v. Trimble, 327 Mo. 773, 39 S.W.2d 372. (8) There was no waiver by the May 11, 1934, letter, since all of the events then occurring must be considered together, and there was no intentional relinquishment of a known right, certainly not as a matter of law. State ex rel. Metropolitan Life Ins. Co. v. Shain, 334 Mo. 385, 66 S.W.2d 871; State ex rel. Continental Ins. Co. v. Becker, 336 Mo. 59, 77 S.W.2d 100. (9) Moreover, plaintiff joined in the submission of the issue of waiver as a question of fact. Continental Cas. Co. v. Monarch Transfer Storage Co.; 23 S.W.2d 209; Fawkes v. Natl. Refining Co., 341 Mo. 630, 108 S.W.2d 7; Williams v. American Life Acc. Ins. Co., 112 S.W.2d 909; Connole v. East St. Louis S.R. Co., 340 Mo. 690, 102 S.W.2d 581; Wiener v. Mutual Life Ins. Co. of N.Y., 179 S.W.2d 39. (10) There was no waiver in the Clarke-Nash correspondence in 1940 read as a whole under the circumstances then existing. (11) There was no waiver by seeking a medical examination in 1942 under the terms of the policy. Kingsland v. Mo. State Life Ins. Co., 228 Mo. App. 198, 66 S.W.2d 959; Williams v. American Life Acc. Ins. Co., 71 S.W.2d 68; Shepard v. Metropolitan Life Ins. Co., 231 Mo. App. 148, 99 S.W.2d 144. (12) The court did not err in admitting defendant's Exhibits A, D, E, F and G. These exhibits were admissible on the issue of vexatious delay. Curtis v. Indemnity Co. of America, 327 Mo. 350, 37 S.W.2d 616; Wollums v. Mutual Benefit Health Acc. Assn., 226 Mo. App. 647, 46 S.W.2d 259. (13) If competent for one purpose, they were admissible, though inadmissible for other purposes, and plaintiff failed to ask for a limitation of their effect. State ex rel. K.C. Public Serv. Co. v. Shain, 345 Mo. 543, 134 S.W.2d 58; Hammond v. Schuermann Bldg. Realty Co., 177 S.W.2d 618; Crabtree v. Kurn, 251 Mo. 628, 173 S.W.2d 851; Curtis v. Indemnity Co. of America, 327 Mo. 350, 37 S.W.2d 616. (14) The letters were at least admissible in part to show the dates on which they were written, and that they were received and considered in connection with action later taken by the company in denying liability. McCormick v. Travelers Ins. Co., 215 Mo. App. 258, 264 S.W. 916; Smith v. Ohio Millers Mut. Fire Ins. Co., 320 Mo. 146, 6 S.W.2d 920. (15) They were admissible to show the intent of the company in writing a letter which plaintiff claims was a waiver, i.e., an intentional relinquishment of a known right. Biggs v. Modern Woodmen of America, 336 Mo. 879, 82 S.W.2d 898; Edie v. Coleman, 235 Mo. App. 1289, 141 S.W.2d 238, certiorari quashed 152 S.W.2d 174; Polk v. M.-K.-T.R. Co., 346 Mo. 793, 142 S.W.2d 1061. (16) They were admissible as a part of a whole series of correspondence. 22 C.J., p. 230, sec. 205, pp. 196-197, secs. 905-906; O'Sullivan v. Wells, 10 S.W.2d 313; Dunn v. Alton R. Co., 88 S.W.2d 224; Friedman v. Griffith, 196 S.W. 75. (17) A party charged with an admission is entitled to make an explanation. Basham v. Prudential Ins. Co., 232 Mo. App. 782, 113 S.W.2d 126. (18) Since George Dyer and Helen Brod were dead, and there were adequate circumstantial guarantees of the reliability of the letters, leaving their weight for the jury, they were admissible as exceptions to the hearsay rule. 22 C.J. 237, sec. 223; Toon v. David G. Evans Coffee Co., 103 S.W.2d 533; Howard v. Strode, 242 Mo. 210, 146 S.W. 792; 3 Wigmore on Evidence (2 Ed.), secs. 1421, 1422, 1427, 1576; German Evangelical B. Church v. Reith, 327 Mo. 1098, 39 S.W.2d 1057; Le Bourgeoise v. Blank, 8 Mo. App. 434; Smith v. Simpson, 221 Mo. App. 550, 288 S.W. 69; Looff v. K.C. Rys. Co., 246 S.W. 578; 22 C.J., p. 216, sec. 178, p. 231, sec. 208.
This is an action instituted by Chester H. Waterous, assignee of the insured, Walter A. Mitchell, against the respondent, in the circuit court of the city of St. Louis, Missouri, to recover benefits under an accident insurance policy. The jury returned a verdict in favor of the respondent and judgment was entered in accordance with the verdict.
The respondent contends that the judgment of the trial court must be affirmed, if for no other reason, because its demurrer to the evidence should be sustained. We will, therefore, proceed to review the evidence. In ruling the demurrer to the evidence, the appellant is entitled to have his evidence and all reasonable inference therefrom taken as true and to have respondent's contradictory evidence disregarded.
With this established rule of law, we will proceed to review the evidence to determine if there is substantial evidence to submit the appellant's case to the jury.
The insuring clause of the policy insured Walter A. Mitchell "against loss resulting from bodily injuries effected directly and independently of all other causes through accidental means . . . as hereinafter specified, subject to the provisions and limitations contained herein." Then followed ten "Articles" and ten "General Provisions." The sixth "General Provision" provided, in part, that "This policy does not cover death or injuries resulting from disease, infectious or otherwise . . ."
The appellant's oral testimony tended to show the following facts: The date of the alleged accident was April 2, 1934, and at that time the insured was 62 years old. He had lived an active life as a bond salesman in St. Louis, Missouri. He and his wife were Christian Scientists and he had never sought medical care. Mrs. Mitchell testified that before April 2, 1934, [458] she had never known the insured to be ill; that he was a very active man; that he liked to mow the lawn and work in his garden and did dance quite a bit at the M.A.A. in St. Louis; that he, also, played cards and probably played cards the Saturday night before the accident. She had never known of the insured's having vomiting spells or dizzy spells or any disability of any kind before the accident. On cross-examination, she testified that about three years before the accident, or perhaps in the Fall of 1931, he had a fainting spell after the death of his son. The insured testified that he never had any sickness or fainting spells before the accident except one day after the death of his son he fainted in his office. He had just buried his son whom he adored above everything on earth, and they were "hitting on an awful soft spot." He ascribed this to an emotional reaction to the death of his son in 1931.
On April 2, 1934, the Mitchells lived at 5544 Bartmer Avenue in St. Louis in a two-story house. There was a flower garden in the yard in which insured and his wife occasionally worked. On that date, about 4:30 P.M., the insured came home and ate his supper. That day was a fairly warm day, the temperature being around 70 degrees. After he ate his supper he went into his garden and worked for about an hour raking mulch and leaves about the flower garden. He then went into the basement of his home to fix the fire for the night. It was then about 7:00 P.M. There was a hot-air furnace in the basement and an uninsulated corrugated pipe leading from the basement to the chimney. It was so low that anyone passing between the furnace and the chimney to reach the other side of the furnace would have to stoop to walk under it. It was not bolted to the chimney, but was set in a collar and fastened with wires, but could not be removed with one's hands. When he stooped to walk under the pipe, he struck his head high on the left forehead against the pipe and received what he described as a hard or "dirty" bump. He was not knocked down or unconscious, nor was the skin broken.
As he walked through the hall on the first floor, his wife saw a dirty mark about two inches round on his head. They spoke about the mark and he mentioned the accident to her. The insured then went upstairs and took a bath. He prepared for bed and read the paper a few minutes. Mrs. Mitchell then went upstairs. The dirty mark on his forehead was gone, but in its place was a red mark about 1/8 to ¼ inches high and from 1 ½ to 2 inches in diameter, which disappeared in about a day. He seemed pale and his head and neck ached. He then went to bed. In 10 or 15 minutes, the insured felt he wanted to go to the bathroom. He did so and then it was that he said to his wife, "Something has happened to me. I feel so bad. Something has happened to my arm." He walked back to bed, lay down, and became unconscious so that he could not be aroused for two days. When the insured regained consciousness, he could not move his right side, arm, or leg, and could not talk. In about two weeks, he regained his speech, and he told his wife about a policy that would "cover this" and told her to call Mr. Dyer, general agent of the insurance company, which she did, telling Dyer of the injury and her husband's illness.
Dr. Joseph L. Gross examined the insured at his home on behalf of the respondent on April 24, 1934. On May 11, 1934, Mr. Dyer wrote the insured "that the Company advises us that in view of the medical reports which they have relative to your physical condition they feel there is no liability under their accident policy which provides indemnity for loss resulting from bodily injuries effected directly and independently of all other causes, through accidental means." The letter, also, cancelled the policy under a right reserved in the policy and enclosed a check for the unearned premium. Appellant introduced this letter on the theory that it was a denial of liability and a waiver of notice of accident required by the policy.
The insured did not receive any medical aid until December, 1939, and Dr. Barnhart operated on his prostate in April, 1940. Shortly after the insured was stricken, however, Mrs. Helen Brod, a Christian Science practitioner, was called and later she went to the Mitchell home to see him. She and Dyer were the only people the insured ever told about the bump on his head and both were dead at the time of the trial.
No other claim was made upon the respondent until the year 1940, when Mr. Clarke, appellant's attorney, corresponded with Mr. Nash, respondent's vice president and general counsel.
[459] A few days before trial, Dr. Pernoud was hired as an expert witness to answer hypothetical questions at the trial. He was a licensed physician, a general surgeon, and a teacher in the St. Louis University Medical School.
It is the respondent's contention that appellant had the burden to prove by substantial evidence (1) that the insured's paralysis resulted from bumping his head against the furnace pipe and (2) that paralysis was not caused by disease.
Respondent first contends that Dr. Pernoud's opinion that the accident caused paralysis was not "substantial evidence" sufficient to make a submissible case, since he testified that disease without trauma could have caused paralysis. It left the jury to speculate upon which two possible causes was responsible for the paralysis.
If respondent's interpretation of the evidence were true, it would be correct, (Kimmie v. Terminal R.R. Assn. of St. Louis, 334 Mo. 596, 66 S.W.2d 561; Hunt v. Armour Co., 345 Mo. 677, 136 S.W.2d 312), but we do not agree with respondent's view of the evidence.
Dr. Pernoud was asked a hypothetical question that embraced the facts that we have outlined. Before he had answered the question, the record shows that respondent's attorney made an objection. We will quote the record:
"Mr. Richardson: Now, my only objection to the hypothetical question was to ask the doctor to include, take into consideration in his answer the testimony that you just heard from Mrs. Mitchell.
"A. I saw Mrs. Mitchell point to the spot on Mr. Flanagan's head and on her own head as to the place where she saw this swelling and this bump. That is what is called the anterior, parietal region, left.
"Q. Now, including that description of the place where the bump was, doctor, can you state with reasonable medical certainty whether or not you could give an opinion as to what was the cause of the condition that this man suffered from following this injury? A. I am able to give an opinion. That opinion is that as a result of this blow on the head certain vibrations of the brain were transmitted because the brain is a very soft structure. These vibrations caused a small blood vessel within the brain to break, and as the minutes went on the blood oozed from this broken vessel, and it has no place to bleed out, so that the blood soaked in and pervaded and invaded this soft brain tissue under considerable pressure, and as it did that it destroyed the nerve cells of the brain and tore through and broke apart the nerve fibers of the brain which ran to the left, the right side of his face and body, causing a motor paralysis in that side of the body."
We are of the opinion that this is substantial evidence that the insured's condition was caused by the blow on his head. This witness said with reasonable medical certainty that he could say that blow on the head caused the paralysis, and it "is a perfectly natural result following such injury to the brain . . ."
This opinion is a positive assertion as to what caused the paralysis and is unlike the Kimmie and other cases relied upon by the respondent. In the Kimmie case, supra, we said: "No layman could know or have any reasonable basis for an inference that it did result from it. The opinion of the doctors that it might, could or would result from the fall is no more than an assurance that such a result was scientifically possible."
Nor do we think that this substantial evidence given by Dr. Pernoud on direct examination was destroyed by his cross-examination. It is true that he said he would not be pinned down by certain text books, but when asked a hypothetical question that embodied the evidence above, and with the additional fact added by the attorney for the respondent that "I am assuming that the man had arteriosclerosis, . . . wouldn't there be a sufficient inciting cause or explanation of breaking of a blood vessel even without any history of force or injury?" his answer was, "If you assume that a man had a severe type of arteriosclerosis, then of course walking upstairs or attempting to fire the furnace would be an inciting cause, but unless it was a severe type of arteriosclerosis, such a small amount of exertion would be inconsequential. The apoplexies that are referred to are the mere breaking of a blood vessel. Among the causes of apoplexy are mentioned over exertion and fatigue and effects of strain; . . ."
In the case at bar, the appellant's evidence did not show that the insured had arteriosclerosis or an enlargement of the heart and blood pressure of 176/110. When another similar question was asked on cross-examination, respondent stated [460] that it expected to show those facts. On demurrer to the evidence, we must exclude those facts because they were developed, if at all, from respondent's evidence.
We think that with the previous good health of the insured and paralysis developing in such a short space of time after his head was bumped on the furnace pipe and the positive opinion of Dr. Pernoud as to the cause of the insured's condition, there is substantial evidence that the insured's paralysis was the result of the bump on his head.
We do not agree with the respondent that appellant had the burden to show "that the paralysis was not caused by disease." Since the case of Fetter v. Fidelity Casualty Co., 174 Mo. 256, 73 S.W. 592, 61 L.R.A. 459, 97 Am. St. Rep. 560, it has been the law in this State that the burden is on the defendant to prove that condition or death of the insured was caused by disease in those policies that had the same or similar clause that is in this policy. In that case, the policy had the phrase, "independent of all other causes," which is found in the policy in the case at bar. Regardless of the view of courts in other states, the law is well established in this State and we think it is sound.
Whether the insured's paralysis is the result of disease, is a question for the jury after the appellant made a prima facie showing of the accident resulting in the insured's condition from the bump he received on his head. Appellant's evidence showed that the insured was in good health prior to the accidental bumping of his head. The respondent had testimony that might tend to show insured's paralysis was due to disease. It follows that the respondent's demurrer to the evidence was properly overruled.
Briefly, the appellant's first four points in his brief deal with waivers of defense by the respondent. First, he says that by respondent's letter of May 11, 1934, respondent denied liability solely on the ground that the insured's condition was not the result of an accident, and, therefore, respondent waived any notice that may be required under the terms of the policy; and, second, its denial of liability in June, 1940, upon the ground that the failure to give notice waived all defenses, and, therefore, the judgment of the court must be for the appellant.
If we follow appellant correctly through thirty-two pages of his brief, he says in effect that his requested instruction for a verdict should have been given, for in his closing sentence in his brief, he says, "Accordingly, we submit that the judgment should be reversed outright."
Respondent contends no such question is before us, for the reason that appellant failed to raise such a point in his motion for a new trial. Appellant's motion for a new trial raises thirty-two points, but in none of them does appellant complain that his requested instruction directing the jury to return him a verdict was refused. Therefore, this question is not before us for review. Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1045; Wilhite v. Armstrong, 328 Mo. 1064, 43 S.W.2d 422; Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977, 87 A.L.R. 660. Also, Mo. Digest, Appeal and Error, Key 301.
Appellant next contends that Exhibit "A" was improperly admitted in evidence. This is a letter written by Mrs. Helen Brod, a Christian Science practitioner, to George Dyer, the general agent of the respondent. At the time of the trial, both Mrs. Brod and Dyer were dead. The letter was in reply to a letter written by Dyer to Mrs. Brod and was not written with the knowledge or consent of the insured, nor is there any evidence showing that she was the insured's agent. It gave her conclusions as to the insured's condition. It states "he was in an almost helpless condition with what seems to be a stroke of paralysis . . ."
Since it does not appear that the insured was connected with this letter in any way or had ever seen it, this exhibit was obviously hearsay evidence, self-serving and incompetent; (Wahl v. Cunningham, 232 Mo. 21, 56 S.W.2d 1052) but respondent contends that this letter was admissible for the reason the appellant was seeking to submit the issue of vexatious delay to the jury. In other words, this letter tended to show the good faith of respondent in refusing to make payment under the policy, and if the appellant wanted to limit the effect of this letter, it was his duty to request an instruction to do so.
We do not agree with respondent. Mrs. Brod was not a physician and her conclusions as to the insured's physical condition would have no probative force. "The good or bad faith of an insurance company in refusing to pay after demand is to be determined by the evidence adduced [461] at the trial upon the merits of the controversy, and not by ex parte affidavits [or statements or letters] produced to the company as preliminary proof, or for the company's information to induce voluntary payment." Travelers Insurance Co. v. Sheppard, 85 Ga. 751, 12 S.E. 18. Quoted with approval in the case of New York Insurance Company v. Ittner, 200 S.E. (Ga.) 522, l.c. 530.
Nor do we think that Exhibits D, E, F, and G were admissible. They were in effect inter-office communications. They contain self-serving statements and conclusions. The insured was in no way connected with these exhibits, nor did he have any knowledge of them. They violated the hearsay rule and are not admissible.
Respondent, also, contends that its exhibits are admissible because they tend to show its good faith on the question of vexatious delay. We have already answered that contention. Next, respondent contends that since the appellant introduced the letter of May 11, 1934, which declined payment, that it had a right to offer these exhibits on the theory that it is entitled to get before the jury the whole of the transactions even though they contained self-serving statements which would be otherwise inadmissible. Among the cases cited is Friedman v. Griffith, 196 S.W. 75.
There would be some merit in respondent's contention if these exhibits were correspondence between the insured and respondent, but such is not the case. The insured did not even know of their existence. These self-serving statements were prejudicial to appellant.
Again, the respondent says that these exhibits are admissible under the rule that declarations made in the course of business, at or about the time the facts or facts stated occurred, by third persons who are unavailable as witnesses, are admissible.
Exhibit D was a medical report made by the respondent's physician, Dr. Joseph L. Gross. He was an available witness, and, in fact, was a witness in this case.
Two of the other exhibits were letters written by the general agent to his principal; ". . . in effect, they were communications within the respondent's household, and amounted to nothing more than the defendant [respondent] talking to itself." Brown v. Missouri State Life Ins. Co., 254 Pac. (Okla.) 7, l.c. 9.
The admission of these exhibits was prejudicial to appellant and, for that reason, a reversal of the judgment is manifest.
Other alleged errors are complained of, but as they are of such a character that they will not necessarily arise upon another trial of the cause, they will not be considered.
For the reasons above stated, the judgment is reversed and the cause remanded. All concur.